AS TO THE ADMISSIBILITY OF
Application No. 17771/91
by E.R.
against Switzerland
The European Commission of Human Rights sitting in private on 12
October 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. K. ROGGE, Deputy to the Secretary to the Commission,
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 31 October 1990
or 27 January 1991 by E.R. against Switzerland and registered on 7
February 1991 under file No. 17771/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant, a Swiss citizen born in 1944, is a business
employee residing in Zurich. Before the Commission he is represented
by Mr. L.A. Minelli, a lawyer residing at Forch in Switzerland.
Particular circumstances of the case
I.
On 24 March 1987 Ms. K. gave birth to a girl R. The applicant
from the beginning accepted paternity. On 26 March 1987 he declared
in writing that he supported the decision of Ms. K. to entrust the
child to foster parents who eventually might adopt the child. R. has
lived with foster parents since 30 March 1987. On 8 May 1987 Ms. K.
signed a declaration according to which she accepted a subsequent
adoption of R.
At the end of May 1987 the applicant wrote to the Youth
Secretariat of the Zurich-Land District, explaining that only with
difficulty could he accept that R. would no longer grow up with her
mother. However, after long conversations with Ms. K. he accepted her
decision. The applicant further wrote that the prospect never to be
allowed to see R. was incomprehensible and painful. By letter of 26
June 1987 the Youth Secretary G. replied that the applicant's
declaration to respect Ms. K.'s decision also implied that he would not
do anything that could endanger the future adoption; contacts between
the applicant and the child would only create unnecessary problems and
not lie in the child's interests.
II.
On 27 July 1987 the Oberengstringen Guardianship Office
(Vormundschaftsbehörde) declared that R.'s father was unknown and had
not taken care of the child. With reference inter alia to Article 265c
of the Swiss Civil Code (Zivilgesetzbuch; see below, Relevant domestic
law and practice) the Office ruled therefore that the father's consent
to R.'s adoption was not necessary. The Office also withdrew Ms. K.'s
parental custody over R. and appointed the Youth Secretary G. as the
child's guardian. The decision was not served on the applicant.
After September 1988 the applicant was represented by a lawyer.
In a letter of 5 September 1988 to the Oberengstringen
Guardianship Office, the applicant stated that he wished to rear R.
together with Ms. K., and that he had not consented to R.'s adoption
and did not intend to do so. A copy of this letter was sent to the
Youth Secretary G. who then transmitted a copy of the decision of the
Guardianship Office of 27 July 1987 to the applicant.
III.
The applicant unsuccessfully appealed against the decision of 27
July 1987 to the Zurich District Council (Bezirksrat). During these
proceedings he was heard by a member of the District Council.
The applicant's subsequent appeal to the Zurich Directorate of
Justice (Justizdirektion) was dismissed on 4 January 1990. In its
decision the Directorate found in particular that it could not be said
that the child's father was unknown. However, it considered the
conditions of Article 265c para. 2 of the Civil Code to be satisfied.
IV.
The applicant then filed an appeal (Berufung) with the Federal
Court (Bundesgericht). In the appeal statement, which was prepared by
a lawyer, the applicant explained in detail how he had shown a serious
interest in his child. He complained that the authorities' conduct
disclosed that they were determined to proceed to an adoption. Finally
he submitted that he intended to marry R.'s mother.
On 9 February 1990 the Zurich Directorate of Justice filed its
observations on the appeal, requesting the Federal Court to dismiss it.
The applicant only became aware of these observations on 6 September
1990, i.e. after the Federal Court had given its judgment.
In its observations the Directorate of Justice found inter alia
that the applicant, in his descriptions of the events, had left out
relevant parts, for instance his statement of May 1987. While he had
expressed an interest in visiting the child, he no longer pursued his
efforts once the guardian told him that this was not possible. The
Directorate found that in fact the applicant was not as helpless as he
was making himself out to be. No indications transpired from the
applicant's appeal concerning the recognition of paternity. The
applicant mostly raised claims which had been made in the proceedings
at issue and had no basis whatsoever. In fact the applicant no longer
even knew where he had unsuccessfully attempted to obtain a birth
certificate of the child.
On 20 April 1990, the Federal Court dismissed the appeal.
Notification of the operative part of the decision, stating that the
appeal was dismissed, was served on the applicant on 23 April 1990 and
received by him, at the earliest, on 25 April 1990. The reasons for
the decision were dispatched to the applicant's lawyer on 27 July 1990.
The judgment stated that the Federal Court followed the procedure
provided for in Section 60 paras. 1 and 2 of the Federal Judiciary Act
(Organisationsgesetz; see below, Relevant domestic law and practice).
In its decision the Federal Court found that the conditions of
Section 265c para. 2 of the Civil Code were met. The Court noted in
particular that upon R.'s birth the applicant had accepted that he was
not in a position to take care of her. In his letter at the end of May
1987 the applicant had not stated that he wanted an intensive contact
with R. but only that he was sad that she could not grow up with her
mother. Moreover, the applicant had not originally reacted to Youth
Secretary G.'s reply of 26 June 1987.
The Court noted that only a year later, on 5 September 1988, the
applicant had again contacted the Guardianship Office. However, he had
not explained in which way he would personally take care of the child.
The Court further found that the applicant had not himself applied for
legal recognition of his paternity; he had only done so in April 1989
when the Zurich District Council had set him a time-limit to prove his
paternity.
V.
On 21 December 1990 the Zurich District Court (Bezirksgericht)
ordered the applicant to pay a monthly subsistence allowance to R.
From this decision it also transpires that R.'s adoption has entered
into legal force.
Relevant domestic law and practice
I.
According to Article 265c of the Swiss Civil Code, consent of a
parent to a child's adoption need not be obtained "1. if he is unknown,
of unknown residence and absent for a longer period of time, or
permanently of unsound mind; 2. if he has not seriously taken care of
the child" ("1. wenn er unbekannt, mit unbekanntem Aufenthalt länger
abwesend oder dauernd urteilsunfähig ist, 2. wenn er sich um das Kind
nicht ernstlich gekümmert hat").
II.
According to Article 62 of the Federal Judiciary Act, upon appeal
an oral hearing takes place in principle before the Federal Court in
non-pecuniary civil cases. Article 60 deals with cases in which the
Federal Court may decide on the appeal without public deliberations.
Article 60 para. 2 states:
[Translation]
"1. The Federal Court may immediately or after obtaining a
reply, without public deliberations and unanimously,
a. decide that it will not deal with the appeal ...
...
2. The Federal Court may also, after the time-limit for an
accessory appeal has expired, at once or after obtaining a reply,
decide, provided it is unanimous, to dismiss the appeal if it
regards the appeal without any doubt as being unfounded."
[German]
"1. Das Bundesgericht kann sofort oder nach Einholung der
Antwort ohne öffentliche Beratung bei Einstimmigkeit
a. beschliessen, dass auf die Berufung nicht eingetreten
wird ..
...
2. Ebenso kann das Bundesgericht nach Ablauf der Frist für die
Anschlussberufung sofort oder nach Einholung der Antwort ohne
öffentliche Beratung bei Einstimmigkeit die Berufung abweisen,
wenn er sie ohne irgendwelchen Zweifel als unbegründet erachtet."
As regards the taking of evidence, Section 55 para. 1 c) states
that the appeal may not contain "statements which are directed against
the establishment of the facts, allegations of new facts, new
objections, contestations and means of evidence" ("das Vorbringen neuer
Tatsachen, neue Einreden, Bestreitungen und Beweismittel"). Section
63 para. 2 states, in so far as relevant:
[Translation]
"The Federal Court must in its decision rely on the determination
of the last Cantonal instance in respect of the factual
circumstances, except if they were reached in violation of rules
of evidence of Federal law."
[German]
"Das Bundesgericht hat seiner Entscheidung die Feststellungen der
letzten kantonalen Instanz über tatsächliche Verhältnisse
zugrunde zu legen, es wäre denn, dass sie unter Verletzung
bundesrechtlicher Beweisvorschriften zustande gekommen sind."
COMPLAINTS
1. Under Article 8 of the Convention the applicant complains of the
conduct of the Swiss authorities who did not obtain his consent for
R.'s adoption.
2. The applicant complains under Article 6 para. 1 of the Convention
that in these proceedings he was never heard by a court, the Zurich
authorities having been administrative bodies. He should have been
enabled to comment before the Federal Court on the statement made by
a previous instance, namely the Zurich Directorate of Justice of
9 February 1990, and to submit further requests for the taking of
evidence.
PROCEEDINGS BEFORE THE COMMISSION
By letter dated "October 1990" and postmarked 31 October 1990 the
applicant wrote to the Commission contesting "the release of my
daughter for adoption, without my consent, by the Federal Court in May
1990" ("Freigabe meiner Tochter zur Adoption ohne meine Zustimmung vom
Bundesgericht im Mai 1990"). No documents were included. In reply the
Secretariat informed the applicant of the conditions for filing an
application.
On 27 January 1991 the applicant's lawyer filed complaints under
Article 8 and on 28 January 1991 under Article 6 of the Convention.
In his application he stated that the Federal Court's decision of 20
April 1990 had been dispatched on Friday 27 July 1990 and could have
been received by the applicant on 28 July 1990 at the earliest.
The application was registered on 7 February 1991.
On 6 January 1992 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits in respect of the
complaint under Article 6 para. 1 of the Convention.
The Government's observations were received by letter dated 12
March 1992. The applicant submitted his observations on 17 April 1992.
THE LAW
1. The applicant complains under Article 8 (Art. 8) of the
Convention that his child was adopted without his consent. Under
Article 6 (Art. 6) of the Convention the applicant complains that he
could not comment on certain statements before the Federal Court, that
he was never heard by a court, and that he could not file further
requests for the taking of evidence.
2. The Commission observes that the applicant, in a letter to the
Commission dated "October 1990" and postmarked 31 October 1990,
contested "the release of (his) daughter for adoption, without (his)
consent, of the Federal Court in May 1990". The Commission considers
therefore that the complaint under Article 8 (Art. 8) of the Convention
was introduced on 31 October 1990. On the other hand, the complaints
under Article 6 para. 1 (Art. 6-1) of the Convention were first
introduced before the Commission by letter dated 28 January 1991.
3. The Government contend with regard to the applicant's complaints
under Articles 6 and 8 (Art. 6, 8) of the Convention that he has not
complied with the requirement as to the exhaustion of domestic remedies
under Article 26 (Art. 26) of the Convention as he failed to raise the
complaints he is now raising before the Commission in a public law
appeal to the Federal Court. While the Court could not have conducted
an oral hearing, it could have quashed the previous Cantonal decisions;
the Cantonal authorities would then have been obliged to take into
consideration the Federal Court's decision.
The applicant submits that in his appeal to the Federal Court he
clearly explained the facts and complained that he could not consent
to the adoption of his child. Moreover, in the appeal proceedings the
Court, the only judicial instance in the proceedings, was bound to
apply both Swiss law and the Convention. Even if he had filed a public
law appeal which would have been upheld by the Court, this would not
have altered the situation any more, as it concerned a period of time
three years before.
Under Article 26 (Art. 26) of the Convention the Commission may
only deal with a matter "after all domestic remedies have been
exhausted, according to the generally recognised rules of international
law".
The Commission considers that in his appeal to the Federal Court
the applicant complained in substance that his daughter was adopted
without his consent. In respect of this complaint he has therefore
complied with the requirement under Article 26 (Art. 26) of the
Convention.
Insofar as the applicant complains about the fairness of the
proceedings before the Federal Court, the Commission notes that the
latter decided as the only court in the applicant's case. There were
no further remedies available to the applicant under Swiss law to
complain about the proceedings before the Federal Court. Also in this
respect the applicant has therefore complied with the requirement under
Article 26 (Art. 26) of the Convention.
3. The applicant complains under Article 8 (Art. 8) of the
Convention that his child was adopted without his consent.
Article 8 (Art. 8) of the Convention states:
1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the
interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.
The Commission considers that the adoption of the applicant's
child without the applicant's consent amounts to an interference with
the applicant's right to respect for his family life within the meaning
of Article 8 para. 1 (Art. 8-1) of the Convention. The Commission must
therefore examine whether this interference was justified under Article
8 para. 2 (Art. 8-2) of the Convention.
The Commission observes that in the present case the domestic
authorities, when deciding on the adoption of the applicant's child,
invoked Article 265c of the Swiss Civil Code. According to this
provision, consent of a parent to the child's adoption need not be
obtained inter alia if the parent has not seriously taken care of the
child. The measure was therefore "in accordance with the law" within
the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
Moreover, when deciding on the necessity of the applicant's
consent to the adoption, the authorities considered that the applicant
had not shown a serious interest in his child who had grown up with her
foster parents. Thus, the Federal Court observed in its decision of
20 April 1990 that upon the child's birth the applicant had accepted
that he was not in a position to take care of her. In a letter in
May 1987 the applicant had not stated that he wanted an intensive
contact with his daughter. He had not at first reacted to the Youth
Secretary's letter of 26 June 1987; when a year later he had again
contacted the Guardianship Office, he had not explained how he would
personally take care of the child. Finally, the Court considered that
the applicant had not applied for legal recognition of his paternity;
he had only done so in April 1989 when he was set a time-limit to prove
his paternity.
The Commission thus considers that the interference with the
applicant's right to respect for his family life was "necessary in a
democratic society ... for the protection of health (and) morals (and)
the rights and freedoms of others", namely the child concerned.
The interference was therefore justified under Article 8 para. 2
(Art. 8-2) of the Convention. It follows that this part of the
application is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
4. Under Article 6 (Art. 6) of the Convention the applicant
complains that he was never heard by a court, that he could not comment
on certain statements before the Federal Court, and that he could not
submit further requests for the taking of evidence.
Article 6 para. 1 (Art. 6-1) of the Convention states, insofar
as relevant:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law."
a) As regards the complaints concerning the lack of an oral hearing
and the taking of evidence the Government submit that the applicant did
not comply with the requirement under Article 26 (Art. 26) in that he
did not file these complaints within six months after 25 April 1990
when he received the notification of the Federal Court's decision. The
subsequent written reasons of the judgment would not have assisted the
applicant in filing his application with the Commission.
In the applicant's view, it is the purpose of Article 26
(Art. 26) of the Convention that an application should only be filed
with the Commission when the domestic proceedings have definitely been
concluded.
Under Article 26 (Art. 26) of the Convention the Commission may
only deal with an application if it has been filed "within a period of
six months from the date on which the final decision was taken".
The Commission considers that the Federal Court dealt in its
judgment inter alia with the applicant's relations with his child.
The written reasons of the judgment would have enabled the applicant
to assess the prospects of his application to the Commission both with
regard to the complaint that no evidence was taken, and with regard to
the complaint that he did not have an oral hearing. The Commission
further recalls the decision of the European Court of Human Rights in
the Oberschlick case according to which "the six-month period mentioned
in Article 26 (Art. 26) of the Convention runs only as from the same
date as that which is relevant with regard to the final decision on the
merits" (see Eur. Court H.R., judgment of 23 May 1991, Series A no.
204, p. 22, para. 42).
In the present case the final decision on the merits was served
on the applicant on 28 July 1990. As he filed his complaints under
article 6 para. 1 (Art. 6-1) of the Convention on 28 January 1991, he
has in this respect complied with the requirement under Article 26
(Art. 26) of the Convention.
b) As regards the well-foundedness of the complaints the Government
submit that the applicant did not ask for an oral hearing before the
Federal Court; the Federal Judiciary Act itself did not envisage such
a right. As regards the taking of evidence, the Government submit that
the Federal Court is bound by Sections 55 para. 1 c) and 63 para. 2 of
the Federal Judiciary Act. Finally, the Government contend that the
applicant could have asked to comment on the statement of the
Directorate of Justice of the Canton of Zurich, although Section 60 of
the Federal Judiciary Act envisages the possibility that the court
decides on the appeal immediately, or after having obtained the reply
of the opposing party.
On the whole the Government acknowledge that the procedure before
the Federal Court does not entirely respect the guarantees of Article 6
(Art. 6) of the Convention. However, these issues cannot be
dissociated from the fact that the applicant did not invoke all the
remedies at his disposal within the meaning of Article 26 (Art. 26) of
the Convention, and the Government therefore conclude that the
applicant's complaints are unfounded.
The applicant submits that he was not entitled to ask for an oral
hearing. Moreover, he had no legal right to comment, in the
proceedings before the Federal Court, on the reply of the Directorate
of Justice of the Canton of Zurich. In fact, the statements of the
opposing party are as a rule served on a party after judgment has been
given; this also happened in the present case.
The Commission, having regard to the parties' submissions under
Article 6 para. 1 (Art. 6-1) of the Convention concerning the
proceedings before the Federal Court, considers that these complaints
raise complex issues of fact and law which can only be resolved by an
examination of the merits. This part of the application cannot,
therefore, be declared manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for
inadmissibility have been established.
For these reasons, the Commission, unanimously,
DECLARES INADMISSIBLE the applicant's complaints under Article 8
(Art. 8) of the Convention that his child was adopted without his
consent;
DECLARES ADMISSIBLE, without prejudging the merits of the case,
the remainder of the application.
Deputy to the President
Secretary to the Commission of the Commission
(K. Rogge) (C.A. Nørgaard)
Full & Egal Universal Law Academy